Language and the Law
Dennis Baron
0. Introduction: Dictionaries and the Law
In a 1994 Lexis search, Kevin Werbach found that the Supreme Court referred to
dictionaries some 664 times in the course of some two centuries, though it cited
dictionaries only twenty-three times before the Civil War, and a recent study
confirmed that Supreme Court justices are relying on dictionaries more than ever to
determine the meaning of our laws (Kirchmeier and Thumma 2010). To illustrate
that finding, the New York Times reported that Chief Justice Roberts looked up
words in five different dictionaries while he was writing an opinion in a patent case
(Liptak 2011). When was the last time you used more than one dictionary to look up
a word?.
But five dictionaries may not always be enough. In a 2012 Supreme Court
opinion, Justice Samuel Alito cited ten dictionaries to support his holding that the
word interpreter means someone who translates speech, not writing (Taniguchi v.
Kan Pacific Saipan [10-1472]). Dissenting in that case, Justice Ruth Bader Ginsburg
found four dictionaries supporting the broader view that “interpreter” can refer to a
translator of documents as well as speech. Complicating things even more, both
justices used definitions in two of the same dictionaries—Webster's Third and
Black’s Law Dictionary—to support their opposing claims.
Why all this consulting of dictionaries? When a word is not defined in a
statute, legal convention says that we’re supposed to give that word its ordinary,
customary, or plain meaning. But if the number of lawsuits filed annually over
matters that range from the very significant to the patently trivial is any guide, the
‘ordinary meaning’ of words is often in dispute. These lawsuits are based on
contradictory interpretations of words and phrases.
One common way to check meaning is to go to the dictionary, and that’s
exactly what lawyers and judges do. According to Werbach (1994), the use of
dictionaries increased significantly after the 1970s, and he notes that dictionary
lookups increasingly determine the outcome of cases, as when Justice Alito argues in
Taniguchi that the definitions he cites prove that interpreter means ‘a translator of
speech,’ even if the word may sometimes refer to ‘a translator of writing.’
The problem with citing dictionaries as legal evidence is that dictionaries
don’t dictate what words mean. Instead, they record what people actually do with
words, and lexicographers know that people may use words to mean a variety of
things, depending on the context, and they may use them inconsistently as well.
A literal paradox Speakers of English use the word literally to mean both ‘literally’ and ‘figuratively,’
which is its opposite. That’s the sort of lexical ambiguity that would be intolerable in
Baron, Language and law, 1 Dictionaries, 2
a statute or other legal document, but in ordinary use context tells us clearly whether
the word is used in one sense or the other.
Although logicians and language purists insist that literally can only mean
‘according to the letter, actually, in a strict or narrow sense,’ as in She took his
remarks literally, dictionaries record multiple meanings for literally. MerriamWebster tells us that literally can also mean ‘virtually, in effect,’ as in He was
literally climbing the walls. According to Merriam-Webster, “some people take
sense 2 [the figurative use of literally] to be the opposite of sense 1.”
The American Heritage Dictionary (5e) defines literally as ‘word for word,
or in a literal or strict sense.’ But the editors acknowledge in a usage note that “for
more than a hundred years” people have also used literally figuratively, as an
intensifier. The dictionary’s panel of usage experts sees this as problematic in some
kinds of examples, but acceptable in others. And the Oxford English Dictionary also
recognizes the common, intensive sense of literally, labeling it as “colloquial.”
But although all three dictionaries suggest that the basic, plain, or ordinary
meaning of literally is either ‘letter by letter’ or ‘in a strict or literal sense,’ a search
of contemporary databases of English suggests that literally rarely occurs in its
literal sense, generally serving instead either as an intensifier or in the paradoxical
sense of ‘figuratively.’ Fortunately, context typically tells us which meaning of the
word pertains.
As lexicographers have always known and legal scholars are gradually
acknowledging, although dictionaries do a good job of defining words, recognizing
multiple and even conflicting senses, they don’t always give us the information that
we need to interpret or disambiguate the law. Even so, dictionaries as a class have a
great deal of popular authority—“the dictionary says” is a common way for us to
prove a meaning—and it shouldn’t surprise us that this authority carries over into the
courtroom.
When we say, “the dictionary says,” we’re suggesting that there’s only one,
like the sun or the law. But there are many dictionaries: Justice Alito could have
easily found twenty dictionaries to consult in Taniguchi instead of ten.
w3interpreter.tiff
Above: The definition of interpreter in Webster’s Third New International
Dictionary (1961) covers both written text (for example, deciphering hieroglyphics)
and, “especially,” oral translation. Both Alito and Ginsberg cite this definition to
support their positions in Taniguchi. Below: Although neither justice cites it, the
Century Dictionary (1890) entry for interpreter also supports both Alito’s and
Ginsberg’s arguments: most interpreters translate speech, that is, “what is said in a
different language,” but the citation referring to an “interpreter of the Constitution”
confirms that interpreters also explain written text.
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centuryinterpreter.tiff
Some of these dictionaries are more complete, some less, and they don’t always
agree on what words mean. That’s why both Alito and Ginsburg could find
definitions that support their conflicting interpretations, not just in different
dictionaries, but sometimes in the same dictionary. That doesn’t surprise
lexicographers, but lawyers and judges need to keep it in mind when they cite
dictionaries in their arguments and opinions.
We see the dictionary as the giver of meaning to words, but in fact it’s the
users of a language who give meaning to words. The job of the dictionary is to
record those meanings, not to prescribe them or lay down rules for how words
should be used. And while some dictionaries try to capture the many contexts in
which a word appears, there are always nuances and usages that escape the
lexicographer’s net.
Dictionary makers know the fallibility of dictionaries, and some jurists do as
well. Yet the courts rely on dictionaries as if their judgements were carved in stone.
Judges don’t just look up general words like interpreter, or legal terms like battery,
lien, and prima facie, which any lawyer should know by heart. They also look up
ordinary words like also, if, now, and even ambiguous. One of the words Chief
Justice Roberts looked up the week the Times checked his work was of. These are
not words most people would consider worth a trip to the dictionary. Sometimes,
they’d be right: in the end, Roberts’ search for of didn’t turn up anything surprising.
The Dictionary Act Some laws contain definitions of specific terms—a move intended by legislators
both to facilitate their interpretation reduce the number of trips to the dictionary. The
first statute of the U.S. Code, 1 USC § 1, called the Dictionary Act and reproduced
in its entirety below, consists of a short introduction and ten definitions that apply to
every federal law unless, of course, specific statutes broaden, narrow, or otherwise
modify such definitions, or, as the Dictionary Act says, “unless the context indicates
otherwise.”
1 USC § 1 — WORDS DENOTING NUMBER, GENDER, AND SO
FORTH
In determining the meaning of any Act of Congress, unless the
context indicates otherwise—
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words importing the singular include and apply to several persons,
parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as well;
words used in the present tense include the future as well as the
present;
the words “insane” and “insane person” and “lunatic” shall include
every idiot, lunatic, insane person, and person non compos mentis;
the words “person” and “whoever” include corporations, companies,
associations, firms, partnerships, societies, and joint stock companies,
as well as individuals;
“officer” includes any person authorized by law to perform the duties
of the office;
“signature” or “subscription” includes a mark when the person
making the same intended it as such;
“oath” includes affirmation, and “sworn” includes affirmed;
“writing” includes printing and typewriting and reproductions of
visual symbols by photographing, multigraphing, mimeographing,
manifolding, or otherwise.
The Dictionary Act tells us that in all the federal laws, singular includes plural and
plural, singular, unless context says otherwise; the present tense includes the future;
and the masculine includes the feminine (but not the other way around—the
Dictionary Act does not provide for gender equality in its definitions).
The Act specifies that signature includes “a mark when the person making
the same intended it as such,” and that oath includes affirmation. Drafters of the
Dictionary Act apparently felt the need to specify the definition of madness in great
detail: “the words ‘insane’ and ‘insane person’ and ‘lunatic’ shall include every idiot,
lunatic, insane person, and person non compos mentis.”
The Act also tells us that “persons are corporations . . . as well as
individuals.” This shouldn’t be surprising. The recent and controversial decision in
Citizens United v. Federal Election Commission (558 U.S. 310 [2010]), brought
corporate political speech—most notably in the form of campaign contributions—
clearly within the First Amendment’s free-speech protections. But there are limits to
the personhood of corporate entities. The very next term, in a 2011 case involving
the Freedom of Information Act (FOIA), AT&T cited the Dictionary Act in its
unsuccessful bid to convince the Supreme Court that the telephone company is a
person entitled to “personal privacy.” However, the Court was not convinced. In
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rejecting the corporation’s claim to personal privacy protection, Chief Justice
Roberts wrote,
We have no doubt that “person,” in a legal setting, often refers to
artificial entities. The Dictionary Act makes that clear. 1 U. S. C. §1
(defining “person” to include “corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as well as
individuals”).
But AT&T’s effort to ascribe a corresponding legal meaning to
“personal” again elides the difference between “person” and
“personal.”
Roberts concluded his opinion with bit of humor not typically found in high court
dicta:
We reject the argument that because “person” is defined for purposes
of FOIA to include a corporation, the phrase “personal privacy” in
Exemption 7(C) reaches corporations as well. The protection in FOIA
against disclosure of law enforcement information on the ground that
it would constitute an unwarranted invasion of personal privacy does
not extend to corporations. We trust that AT&T will not take it
personally.
[FCC v. AT&T (09-127)]
The Dictionary Act also finds it necessary to define writing. The final
provision of the Dictionary Act establishes a blanket definition that includes not just
traditional kinds of writing (printing and typewriting), but also writing by means of
several technologies that were fairly new at the time:
“writing” includes printing and typewriting and reproductions of
visual symbols by photographing, multigraphing, mimeographing,
manifolding, or otherwise.
multigraph1905.jpg
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Above: The Multigraph was an important office writing machine back in 1905 but it
is virtually unknown today. Multigraphs used strips of raised type inserted into a
drum and inked with a ribbon to print form letters that looked like they had been
individually typed.
Below, left: ad for Ralph Wedgwood’s Patent Manifold Writer, invented in 1806,
which employed “carbonified” paper, or carbon paper as it came to be known, to
duplicate a letter as it was being written; and right, an ad for Edison’s mimeograph,
patented in 1876, which promised to make 3,000 copies from a single stencil.
multigraphmimeo.jpg
Federal law can’t be expected to keep up with every writing technology that
comes along, but the newest of the six kinds of writing that the Dictionary Act does
refer to—the multigraph—was invented around 1900 and has long since
disappeared. No one speaks of multigraphing, or uses it, or of manifolding, an even
older technology that involves copying by means of carbon paper, though in the
digital age, with carbon paper no longer necessary, the phrase carbon copy has come
to mean ‘clone,’ and its abbreviation, c.c., remain in common use thanks to the
popularity of email. And for most of us, the mimeograph is at best a dim memory.
But it was important to include all of these technologies under the banner of writing
at the time of the Dictionary Act, perhaps because some people might have
questioned whether what were then innovative technologies actually constituted
writing.
But the Act was never updated to include other writing technologies: Braille,
for example, or photocopying, which replaced photography as a means of copying
text (though the cell phone camera is popularizing that literal act of photo-copying
once again), not to mention the writing we do on computers and mobile phones,
devices which seem now to be the primary means of transmitting text, though
presumably these newcomers, along with Facebook and Twitter and all the writing
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technologies that have yet to appear, are covered by the Dictionary Act’s blanket
phrase, “or otherwise.”
In any case, given that revision is an integral part of writing, it may seem odd
that Congress never thought to revise its definition to drop the references to dead
technologies and include some of the newer ones.
Actual dictionary definitions of writing tend to be more general than the
definitions we find in the Dictionary Act, and, though recently dictionaries have
made an effort to include the new technologies of writing, these definitions aren’t
written with the courts in mind. Nathan Bailey (1736) defines writing simply as “the
art or act of signifying and conveying our ideas to others by letters or characters
visible to the eye.” Samuel Johnson (1755) is a bit more specific about the
technology involved: writing is “a legal instrument; a composure; a book; a written
paper of any kind.” These are the kinds of definitions the Framers of the Constitution
would have been familiar with, but they’re not much help once the telegraph comes
along, and the digital computer complicates the notion of writing still further.
baileywriting.jpg
Above: The definition of writing from Nathan Bailey’s Dictionarium Britannicum,
vol 2. London: 1736. Below: the definition from Samuel Johnson’s Dictionary of
the English Language. London: 1755.
johnsonwriting1.jpg
The American lexicographer Noah Webster (1828) considers both the
technologies of writing and the purpose of writing in his definition:
the act or art of forming letters and characters, on paper, wood, stone
or other material, for the purpose of recording the ideas which
characters and words express, or of communicating them to others by
visible signs.
Like the Dictionary Act, Webster enumerates some, though not all, of the possible
kinds of writing. But Webster adds, “We hardly know which to admire most, the
ingenuity or the utility of the art of writing.” This sort of editorializing does not
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occur in dictionaries today, though it occasionally makes its way into the writing of
statutes.
websterwriting2.jpg
Above: Definition of writing from Noah Webster’s An American Dictionary of the
English Language. New York: 1828. Below: the definition from Webster’s Third
New International Dictionary. Springfield, MA: 1961.
w3writing2.jpg
Webster’s Third (1961) preserves much of Noah Webster’s original, without
the editorializing: writing is “the act or art of forming letters on stone, paper, wood,
or other suitable medium to record the ideas which characters and words express or
to communicate the ideas by visible signs.” The American Heritage Dictionary
(2011) gives a more general definition, with the visible and communicative aspects
of writing implied rather than directly expressed. It’s a definition that easily
encompasses the writing done on computers, cell phones, and tablets: “The act or
process of producing and recording words in a form that can be read and
understood.” The Oxford English Dictionary adds to the conventional view of
writing as a visible medium the nonvisible writing done when computers transfer
keystrokes to digital memory: “The process of causing an item of data to be entered
into a store or recorded in or on a storage medium.” As if to drive the point home,
the OED’s latest definitions are only available online.
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oedwriting.jpg
Screenshot from the definition of writing from the online Oxford English
Dictionary. oed.com, 2011
The Dictionary Act’s attempt at cutting-edge defining now seems odd: all of
the technologies that the Act names have been replaced—typewriters in America are
more likely to be museum pieces or attic junk than writing machines, and even
printing is now more likely to be digitally-mediated—and the act is silent on the new
technologies that replaced them.
With more writing done with silicon chips than pen and ink, we’re shifting
away from mechanically reproducible text to writing on screen. The advent of textto-speech and speech-to-text technologies promises to blur the traditional
distinctions between speech and writing. And the forms which writing takes are not
just visible representations of our ideas, but machine-readable strings of 1’s and 0’s,
charged particles, nanoswitches flipping on and off, LEDs, pixels, and things not yet
dreamt of in our philosophy. Writing is becoming less and less a physical object
which can be grasped, or whose physical location can be fixed in time and space, and
more and more something that can be coded and streamed, fragmented and
rematerialized, zipped and expanded, mashed and remixed, and moved around with
the fingertips on a touch screen.
Of course no legal definition that fits into a single clause can hope to define
writing, but at some point Congress might bring the Dictionary Act into the twentyfirst century by dropping out the antique writing technologies and accommodating
the newest ones. For now, though, the Federal Code treats writing as the province of
multigraphs, manifolds, typewriters, and mimeos, and possibly an internet that is
little more than a series of tubes. While legal definitions are important, redefining
writing is not a high-priority issue for our representatives. Perhaps by the time
Congress gets around to revising 1 USC § 1, Facebook and Twitter will be long
gone, the digital age will have given way to the next big thing, and writing itself may
have become nothing more than an obsolete series of tubes. In any case, though, in
the absense of legal precedents, what dictionaries say about writing is likely to
become more important in cases where writing is a legal issue.
But another lesson we can learn from the Dictionary Act is that, even when
statutes define their own terms, those definitions may be ambiguous, inaccurate, out
of date, or otherwise inadequate, necessitating a trip to the dictionary. Unfortunately,
dictionary definitions don’t always do the trick either.
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Barnhart v. Peabody Coal In the case of Barnhart v. Peabody Coal Co. (2003), the Supreme Court had
occasion to consider the meaning of a single, pivotal word, shall: if the verbal shall
in the Coal Act functions as a command, what happens if the Social Security
Commissioner carries out the duties prescribed by the command, but does so after a
deadline imposed by the law has passed?
Justice Souter summarizes the question at the start of his opinion:
The Coal Industry Retiree Health Benefit Act of 1992 . . . includes
the present 26 U. S. C. § 9706(a), providing generally that the
Commissioner of Social Security “shall, before October 1, 1993,”
assign each coal industry retiree eligible for benefits to an extant
operating company or a “related” entity, which shall then be
responsible for funding the assigned beneficiary’s benefits. The
question is whether an initial assignment made after that date is valid
despite its untimeliness. We hold that it is.
Barnhart v. Peabody Coal, 537 U.S. 149 (2003, emphasis added)
The Court’s majority decided that sometimes circumstances may excuse the
delayed fulfillment by the Commissioner of what the Coal Act requires: in other
words, better late than never. But in his dissent, Justice Thomas insisted that the verb
shall allows no wiggle room: a command that is not fulfilled on time cannot be
fulfilled once time is up. Reminding the Court that the words in statutes must be
understood in their “ordinary and or natural meaning,” Thomas quoted the American
Heritage Dictionary to support his claim that shall is a “mandatory command”:
[shall aux. v.] (1) a. Something that will take place or exist in the
future.... b. Something, such as an order, promise, requirement, or
obligation.
Although sense 1(a) of the definition that Thomas cited shows that sometimes shall
is simply an indicator of the future tense, all the justices agreed that shall functions
as an imperative in the Coal Act. What they disagreed about was just how much
latitude the use of imperative shall permits.
The American Heritage definition doesn’t actually support Thomas’ claim
that imperative shall must be absolute: it’s an order, promise, requirement, or
obligation, to be sure, but the dictionary, like the law in question, doesn’t say what
happens if the order is not carried out, the promise is broken, the requirement or
obligation is not fulfilled. Checking other dictionaries won’t resolve the problem:
they too remain silent on the matter. The Coal Act is similarly silent, imposing no
penalty for failure to act, or for acting after the stated deadline. Justice Thomas
argues that this is not consistent with the ordinary meaning of shall, and he
concludes that if the mandated action is not performed on time, then it cannot be
performed after the deadline has passed:
If Congress indicates a lesser penalty for noncompliance (i.e., less
than a loss of power to act), we will administer it; but if there is no
Baron, Language and law, 1 Dictionaries, 11
lesser penalty and shall stands on its own, we will let government
officials shirk their duty with impunity.
Rather than depriving the term shall of its ordinary meaning, I would
apply the term as a mandatory directive to the Secretary. The
conclusion then is obvious: The Secretary has no power to make
initial assignments after October 1, 1993.
The ordinary meaning of shall is clear both to Justice Thomas and to the other
justices. But Thomas and his colleagues don’t agree on what that ordinary meaning
is. And in this case, the dictionary does not help to resolve the issue.
U.S. v. Costello Recently the prominent legal scholar Richard Posner, chief judge of the U.S. Seventh
Circuit Court of Appeals, challenged the judicial reliance on dictionaries for word
meaning. U.S. v. Costello (2012) depends in large part on the meaning of the word
harboring, and in his ruling in the case, Posner found the government’s reliance on
the dictionary definitions of harboring to be misguided and inadequate. Posner
warned, “Dictionaries must be used as sources of statutory meaning only with great
caution.”
Costello deals with a violation of the Immigration Act. Since the passage of
the 1917 Immigration Act, it has been illegal to shield, conceal, or harbor illegal
aliens:
Any person who . . . (iii) knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the United States in
violation of law, conceals, harbors, or shields from detection, or
attempts to conceal, harbor, or shield from detection, such alien in
any place, including any building or any means of transportation . . .
shall be punished as provided in subparagraph (B).
[8 U.S.C. § 1324(a)(1)(A)(iii)]
In a bench trial, Costello was found guilty of violating that law by harboring her
live-in boyfriend, a convicted drug dealer from Mexico who had been deported after
serving a prison sentence, but who had subsequently returned to the United States
illegally and resumed living with Costello. She was fined $200 and sentenced to two
years probation. She appealed this verdict.
In its response to her appeal, the government argued that Costello knew her
boyfriend was in the country illegally—Costello does not contest this—and that by
letting him live with her, she harbored him in violation of the law. The government
claimed that dictionaries current in 1952, when the relevant statute was enacted,
defined to harbor simply as ‘to house a person, to provide shelter.’ But Posner found
this definition wanting: “Sheltering” doesn’t seem the right word for letting your
boyfriend live with you.”
Citing Black’s Law Dictionary, Posner concluded that harboring must imply
concealment or secrecy (the government acknowledged that Costello never hid her
boyfriend but lived with him openly), and googling the word, he found thousands of
hits about harboring fugitives, enemies, refugees, criminals, slaves, Jews, or others
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sought rightly or wrongly by the authorities. It’s true that a harbor can provide
shelter for a boat, and that occasionally one finds citations about harboring flood
victims, but a Google search does not return many examples of harboring in the
sense of ‘openly sheltering or housing someone.’ This demonstrates to Posner that
‘providing shelter openly’ cannot be the ordinary meaning of harboring.
According to Posner, the problem with dictionaries is that their “definitions
are acontextual, whereas the meaning of sentences depends critically on context,
including all sorts of background understandings.” He cites Learned Hand’s advice
“not to make a fortress out of the dictionary” and Frank Easterbrook’s assertion that
dictionaries are museums of words, “historical catalog[s] rather than a means to
decode the work of legislatures.”
Lexicographers agree: Jesse Sheidlower, of the Oxford English Dictionary,
told the New York Times, “Dictionary definitions are written with a lot of things in
mind, but rigorously circumscribing the exact meanings and connotations of terms is
not usually one of them.”
Dictionaries aren’t designed to be legal authorities, or even authorities on
language, though many people, including the justices of the Supreme Court, seem
determined to think of them that way. What dictionaries are, instead, are records of
how some speakers and writers have used some words some of the time. Dictionaries
don’t include all the words there are, and except for an occasional usage note, they
don’t tell us what to do with the words they do record. There are many dictionaries
and they don’t always agree. And sometimes dictionaries don’t cover the specific
context whose meaning is in doubt.
The image of the dictionary is that of an absolute law-giver, when it comes to
language. But the reality of dictionaries is that they are tentative, inconsistent, and,
from a legal perspective, alarmingly incomplete.
Language is ambiguous, and that’s a problem for the law The problem of specifying the meaning of a word or phrase goes well beyond
lawyers using dictionaries. Ordinary language is full of ambiguity. It’s common for
people to misunderstand one another when we’re speaking or writing anything.
Here’s a routine example: My wife asks me to stop for bread on the way home, but
when I proudly offer her an artisan sourdough, she says, “I wanted whole wheat.”
We adapt our communications to minimize such misunderstanding, and for
shopping, a mobile phone proves a lot more useful than a dictionary for resolving
ambiguity—that’s why so many people in grocery stores are calling or texting to
make sure that this time they’re buying the right thing.
It’s hardly news that literature is ambiguous, and literary critics spend their
time debating whether a poem or novel means this or that. The response of both
specialist and nonspecialist readers of fiction and poetry depends in part on shared
cultural ideas (Shakespeare is paramount, or he’s just another dead white man), in
part on experience and individual taste (The Great Gatsby is the great American
novel—though surely not the 3-D version—no, it’s For Whom the Bell Tolls; no, it’s
Moby Dick, or Huckleberry Finn, or Catcher in the Rye).
Like it or not, our sacred texts are ambiguous as well: the history of religions
shows that scholars, zealots, and partisans haven’t just debated the slippery meanings
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of the various holy writs, sometimes they fight or even slaughter one another over
readings that they defend as dogma or attack as heresy.
It turns out that no matter the context, language is slippery, and interpretation
is always up for grabs. Even the notion that the laws are an exception, that legal
meaning is more transparent or precise, turns out to be a polite fiction. If legal texts
were crystal clear, then instead of arguing and weighing competing interpretations of
statutes and contracts, judges and lawyers would have a lot more time for golf or
Facebook.
Where does this leave us when we’re trying to establish the meaning of a
statute, or more important, the meaning of the Constitution itself? It’s fine to
acknowledge that the spoken or written word may yield multiple interpretations, and
that meaning may be said to reside more in the mind of the hearer or reader than in
the text. But we expect a degree of stability from our laws that we don’t demand of
literature or shopping lists, and that is where the courts come in. When it comes to
literature, there is no court of arbitration, no authoritative body which tells us exactly
what Hamlet means when he says, “To be or not to be, that is the question.” Some
religions endow a particular person, or a priestly group, with doctrinal power, others
leave meaning in the hands of the faithful. But laws are interpreted by judges, and if
judges use dictionaries to arrive at meaning, or if they reject dictionaries as less
reliable than massive online database searches, or they simply decide to trust their
native-speaker intuition—“I speak English, so I know what this means”—then that is
their prerogative. The question for us is not how judges should determine meaning,
but rather how they do determine it.
Taniguchi gives us some insight into this process. Although jurists like
Richard Posner are correct to question the usefulness of dictionaries in determining
statutory meaning, most judges and lawyers, like most ordinary people, accept the
authority of dictionaries, though in the case of judges, many cite only those
definitions which support their interpretation, or they spin that definition to bolster
their argument.
In Taniguchi, Justice Alito cites, among others, the Oxford English
Dictionary definition of interpreter, “One who translates the communications of
persons speaking different languages; spec. one whose office it is to do so orally in
the presence of the persons.” Alito notes that the OED labels an earlier sense of
interpreter, “A translator of books or writings,” as obsolete. The word once meant a
person who explained things to others, a commentator, someone who unraveled
“laws, texts, mysteries.” Consistent with this sense, interpreter was once a common
name for an English dictionary. The goal of the first dictionaries was to explain
foreign or difficult words, and Henry Cockeram titled his 1623 lexicon, The English
Dictionarie: or, an Interpreter of hard English Words.
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cockeram.tif
The respondents in Taniguchi cite Webster’s Third New International
Dictionary, which defines interpreter as, “one that translates; esp: a person who
translates orally for parties conversing in different tongues.” An interpreter typically
translates speech, but the word can refer to written translation as well. That argument
convinced the trial court to award interpreters’ expenses for document translation to
Kan Pacific Saipan, and it’s the interpretation that the Ninth Circuit Court of
Appeals accepted in affirming that award. But Justice Alito interprets Webster’s
definition differently, arguing that the “sense divider” esp (‘especially’) points us to
the ordinary meaning of the word. According to Alito, “That a definition is broad
enough to encompass one sense of a word does not establish that the word is
ordinarily understood in that sense.” In other words, interpreters sometimes translate
writing, but the word most commonly refers to oral translation.
Alito adds, “The fact that the definition of ‘interpreter’ in Webster’s Third
has a sense divider denoting the most common usage suggests that other usages,
although acceptable, might not be common or ordinary.” Nailing down the
dictionary argument, Alito concludes, “It is telling that all the dictionaries cited
above defined “interpreter” at the time of the statute’s enactment as including
persons who translate orally, but only a handful defined the word broadly enough to
encompass translators of written material.” The ordinary meaning of interpreter is
indicated by the definitional modifier especially, and by the fact that more
dictionaries speak only of oral translation in their definitions. Alito does not cite it,
but the American Heritage Dictionary defines interpreter solely as ‘One who
translates orally from one language into another’ (5th ed., 2011, s.v.).
In her dissent, Justice Ginsberg reads the same evidence differently:
“‘interpreters’ is more than occasionally used to encompass those who translate
written speech as well.” For Ginsburg, “employing the word ‘interpreters’ to include
translators of written as well as oral speech, if not ‘the most common usage’. . . is at
least an ‘acceptable’ usage.” Words can have more than one ordinary sense. And as
Justice Scalia argued in Washington, D.C., v. Heller, “The fact that the phrase was
commonly used in a particular context does not show that it is limited to that
Baron, Language and law, 1 Dictionaries, 15
context” (Washington, D.C., v. Heller, 15; we’ll talk more about Heller in the next
chapter).
The upshot of Tanigucho is that majority rules, and when both sides draw
opposite conclusions from the same lexical data, the majority’s reading of the
dictionary evidence trumps the minority reading of that same evidence. That
confirms that since even dictionary evidence can be ambiguous, it is the Court that
has the ultimate authority in matters of definition, and not the dictionary. And that’s
how interpretation works, not just with legal language, but with language in general:
meaning is determined by the reader or the listener, not by the text.
An exercise in defining marriage When it comes to the meaning of the word marriage, dictionaries and statutes don’t
always agree, and neither the word book nor the law book may fully reflect the
“ordinary” meaning of the word.
Definitions of marriage have been in the news as states consider or enact
laws barring same-sex unions, and suits are filed contesting those laws. The federal
Defense of Marriage Act (DOMA, passed in 1996), is typical in establishing a legal
definition of marriage:
SEC. 3. DEFINITION OF MARRIAGE.
IN GENERAL.—Chapter 1 of title 1, United States Code, is amended
by adding at the end the following:
“§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the
meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of
the United States, the word ‘marriage’ means only a legal union
between one man and one woman as husband and wife, and the word
‘spouse’ refers only to a person of the opposite sex who is a husband
or a wife.”
When a statute defines a term, we should not need to look it up in a
dictionary. But legal challenges to bans on same-sex marriage sometimes cite
dictionary definitions to buttress their claims. As Ben Zimmer (2012) notes, a 2007
Rhode Island Supreme Court ruling held that the state’s Family Court had no
jurisdiction over a same-sex couple married in Massachusetts because at the time of
the Family Court’s creation, in 1961, dictionaries defined marriage as a union
between a man and a woman. This ruling, relying on a definition that seems to
exclude same-sex marriage, seemed to provide legal support for gay or lesbian
marriage, but in most cases, such definitions are deployed in arguments to ban samesex unions.
As we have seen, dictionary definitions can influence legal interpretation,
and because of this one activist, Mike Raven, began an online petition drive to get
dictionary.com, a widely-used site whose definitions are based on those of the nowdefunct Random House Dictionary, to change its definition of marriage so that
same-sex marriage gets equal treatment.
Baron, Language and law, 1 Dictionaries, 16
Dictionary.com currently defines marriage as
a. the social institution under which a man and woman establish
their decision to live as husband and wife by legal commitments,
religious ceremonies, etc.
b. a similar institution involving partners of the same gender: gay
marriage.
dictionarydotcommarriage.tif
Screenshot of dictionary.com definition of marriage (taken on 6-21-12)
Many dictionaries have added a definition of same-sex marriage to their entry for
marriage by appending an additional, secondary, or less-common meaning. Raven
would like to see this two-part definition rewritten into a single, gender-neutral one
that doesn’t relegate gay marriage to what he regards as second-class status:
A civil, social and legal institution under which two consenting adults
establish their life-long relationship based on love and commitment.
This petition drive is not the first attempt to change a dictionary definition,
and it raises the possibility that word meanings could be decided by popular vote or
political pressure. But it should also make us wonder whether changing the
definition of marriage would change people’s attitudes toward marriage in any way.
After all, language expresses what people want to say; altering definitions, whether
through laws or by revising dictionaries, can’t really repress those sentiments. An
important question, for us, though, is whether dictionary definitions of marriage can
influence statutory interpretation.
Baron, Language and law, 1 Dictionaries, 17
That will be determined in the Spring of 2013. The Supreme Court has taken
up two challenges concerning marriage laws: Hollingsworth v. Perry is an appeal of
the Ninth Circuit’s ruling on California’s Prop 8 banning same-sex marriage, and
U.S. v. Windsor challenges the Defense of Marriage Act, which specifies a
heterosexual definition of marriage, and which the Justice Department has
announced it will no longer enforce. The justices may well consult dictionaries as
they rule on these two cases. While they deliberate, here are some definitions of
marriage taken from major dictionaries from the 18th century to the present. Many of
these definitions may figure in the justices questions and opinions. What we may
ask, at this point, is, how would they help or harm an argument favoring, or
opposing, the legalization of same-sex marriage?
Samuel Johnson, an 18th-century dictionary-maker often quoted by judges,
defines marriage as “the act of uniting a man and a woman for life” (A Dictionary of
the English Language, 1755).
johnsonmarriage.jpg
In his American Dictionary of the English Language (1828), Noah Webster, a
lawyer by training, defines marriage as a specifically heterosexual union and
expatiates at some length on its religious aspects:
MARRIAGE, n. . . . The act of uniting a man and woman for life;
wedlock; the legal union of a man and woman for life. Marriage is a
contract both civil and religious, by which the parties engage to live
together in mutual affection and fidelity, till death shall separate
them. Marriage was instituted by God himself for the purpose of
preventing the promiscuous intercourse of the sexes, for promoting
domestic felicity, and for securing the maintenance and education of
children.
webstermarriage.jpg
Baron, Language and law, 1 Dictionaries, 18
Joseph Emerson Worcester, who worked for Webster and later became his
chief rival in dictionary making, skips Webster’s moralizing but copies his definition
word for word in the Comprehensive Pronouncing and Explanatory Dictionary of
the English Language (1830): “the act of uniting a man and woman for life.” Stung
by charges of plagiarism, Worcester later expanded his definitions of marriage, and
other words, in the Universal and Critical Dictionary of the English Language
(1846):
MAR'RIAGE, (mar'rjj) n. [mariage, Fr.] The act of marrying, or
uniting a man and woman for life; matrimony; wedlock; wedding;
nuptials. It is sometimes used as an adjective, and it is often used in
composition; as, marriage-articles, marriage-bed, &c.
The Century Dictionary (1891), the first to be produced on scientific,
linguistic principles, defines marriage as “the legal union of a man with a woman for
life,” but it is also the first lexicon to recognize that marriage is defined differently
in different cultures. Marriage may include both common law marriage and “plural
marriage,” or polygamy (not just abroad, but even in the United States, as practiced
by Mormons) as well.
centurymarriage.tif
Baron, Language and law, 1 Dictionaries, 19
Above: The Century Dictionary defines marriage as heterosexual, but its definition
also recognizes the fluidity of wedlock practices across cultures. See below, plural
marriage, both “among the Mormons” and in “Oriental countries” (a reference not
to the Far East, but to Islam):
centurypluralmarriage.tif
Black’s Law Dictionary (2nd ed., 1910), confirms earlier definitions
specifying one man and one woman:
Marriage . . . is the civil status of one man and one woman united in
law for life, for the discharge to each other and the community of the
duties legally incumbent on those whose association is founded on the
distinction of sex.
black1910marriage.tif
While only the Century acknowledges various kinds of marriage, all discuss only
heterosexual marriage. But times and mores change, and as same-sex marriage gains
traction, dictionaries take notice, not because they’re written by social
revolutionaries, but because their charge is to record language as people use it, and
even the opponents of marriage equality use the word marriage to refer to those
same-sex unions they oppose. In 2003, Merriam-Webster’s Collegiate Dictionary
(11th ed.) added same-sex unions to its definition of marriage:
1a (1) the state of being united to a person of the opposite sex as
husband or wife in a consensual and contractual relationship
recognized by law (2): the state of being united to a person of the
same sex in a relationship like that of a traditional marriage.
w11marriage.tif
Baron, Language and law, 1 Dictionaries, 20
The Oxford English Dictionary, another favorite with judges, has also added samesex marriage to its definition:
a. The condition of being a husband or wife; the relation between
persons married to each other; matrimony. The term is now
sometimes used with reference to long-term relationships between
partners of the same sex (see gay marriage n. at GAY adj., adv.,
and n. Special uses 2b).
The OED also adds this definition of gay marriage (s.v., gay), tracing the first use of
the term back to 1971:
gay marriage n. a relationship or bond between partners of the
same sex which is likened to that between a married man and woman;
(in later use chiefly) a formal marriage bond contracted between two
people of the same sex, often conferring legal rights; (also) the action
of entering into such a relationship; the condition of marriage
between partners of the same sex.
oedmarriage.tif
Above: screenshot of OED definition of marriage. Below: screenshot of OED entry
for gay marriage (taken on 6-21-12).
And in 2011, the American Heritage Dictionary (5th ed.) added both same-sex
marriage and polygamy to its definition of marriage:
a. The legal union of a man and woman as husband and wife, and in
some jurisdictions, between two persons of the same sex, usually
entailing legal obligations of each person to the other.
b. A similar union of more than two people; a polygamous marriage.
c. A union between persons that is recognized by custom or
religious tradition as a marriage.
d. A common-law marriage.
Baron, Language and law, 1 Dictionaries, 21
ahdmarriage.tif
Screenshot of the definition of marriage from the American Heritage Dictionary
(taken on 6-21-12).
Assignment: Craft an argument supporting or challenging the role of dictionary
definitions in the legal interpretation of marriage.
Here are some specific questions for you to consider:
1. Since the Defense of Marriage Act defines marriage as a heterosexual union,
is it necessary, or even possible, for the courts to consider the “ordinary
meaning” of marriage in interpreting the law?
2. Marriage is not the only dictionary definition that people have tried to
change by pressuring dictionary editors and publishers. Research some of the
others. How useful are petition drives or other kinds of external pressure in
getting dictionary makers to change their definitions?
3. What are the strengths and shortcomings of dictionary definitions (the ones
cited above, as well as others that you find) used to support legal
interpretation?
Taniguchi is a minor case involving dueling dictionaries. In the next chapter, we will
look at the landmark decision in Washington, D.C., v. Heller (2008), in which the
Supreme Court interpreted the Second Amendment to guarantee an individual right
to own a gun. The case hinged in part on dictionaries and grammar books, both those
current in the Framers’ day, and those which describe the English language today.
Heller furnishes an object lesson in how courts weigh linguistic evidence as they
determine legal meaning.